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Monday, 19 August 2013

Horning and poinding - 17th century debt in Scotland

Often in the past our ancestors could find themselves in a spot of financial bother, but if they found themselves in serious debt, they would soon find that the state was very much on the side of creditors. Prior to 1838, if a person failed to pay his or her debts, they could be punished quite harshly with imprisonment and the seizure of assets. The civil process for debt recovery was for the creditor, the person to whom the money was owed, to first demand payment of the outstanding debt through a document called a 'protest', which essentially said “pay up – or else”. If the creditor still had no joy following this, he or she could then appeal to a court for permission to pursue the debt through a process called 'horning'. A 'letter of horning' laid out the full terms of the agreement and the money outstanding, with an instruction by the court for it to be paid up immediately on pain of the debtor being declared a rebel.

The following is an example I recently found in Ayrshire from the late 17th century, of a letter of horning drawn up on 5 AUG 1693 against Matthew Campbell of Waterhaughs. The document was drawn up by the sheriff clerk of Ayr on behalf of a creditor called David Patterson. Matthew had borrowed over £400 from him the previous year via a recorded obligation called a 'bond of corroboration' (a bond was basically an IOU), which had to be paid back by the following Candlemas (2 FEB). He defaulted, and on 11 JUL 1693 he received a demand for the debt to be paid within six days “under pain of rebellion and putting of him to our horn”. He was apprehended and the letter delivered to him, witnessed by John Campbell of Newmylns and John Patterson, David Patterson's son. In response:

“…he most contemptuously disobeyed the command & charge given to him in manner fords Therefore upon the ffyfth day of August and year of God […] I David Patterson messenger past to the mercat cross of Air head burgh of the sherriffdom yrof and yrat after the crying of three seall oyez open proclaimen & publick overreading of …the letters…and orderly denounced the sd Mr Mathew Campbell there majestie’s Rebel and put him to their Highnes horn by three blasts of ane horn as use is And ordaines all his moveable goods and gear to be escheat and brought to their Majesties use…”

In the same year a separate ‘decreet of horning and poinding’ was also initiated against Matthew in Ayrshire by a woman called Elizabeth Neilson (a 'decreet' was the final judgment of a court). In this case, again after failing to repay a sum of money, not only was he condemned as a debtor, but his estate 'poinded', in other words, all his moveable assets were seized, though not his heritable property. In this case the debt was due to the fact that in 1675 he had offered himself up as a cautioner (pronounced 'kayshoner', meaning 'guarantor' in Scots) for someone else's bond many years before, which had defaulted.

Due to certain circumstances concerning his estate, Matthew went to the Court of Session on 3 JAN 1694 to try to overturn the charge of horning. The Lords considered the case and agreed that Matthew’s liabilities for the period in which he was forfeit could be ‘superseded’ i.e. payment could be postponed. They nevertheless found that :

“the charge of horning was warrantable for the annuities preceding the forfeiture”.

(Source: Supplement to the Dictionary of the Decisions of the Court of Session, Volume 4, p.115: 1694, January 3. Matthew Campbell of Waterhaugh against Elizabeth Neilson.)

Within a few years, Matthew was eventually declared bankrupt in Scotland (with the bankruptcy process in Scotland known as 'sequestration'). He died in 1708.